MKDP/Raven/Keynes/ barclaycard - Claimform now received

[Andyorch]

I personally would be pushing this into SCT...its only their fees that have tipped the scales.

 

Andy

[Alloyz1]

Morning

 

Mediation for 10k can/ should be remote (web based) and set you back around £100 per hour (each party) ((MoJ Guidelines)). For 10k it should be wrapped up in a couple of hours.

 

Mediation does not have to be through a specific mediation provider, you could do it yourself via letter and call it ADR (Alternative Dispute Resolution).

 

At least if you try it, you are satisfying Pre Action Conduct/ CPR regarding trying to resolve it without the involvement of the court and it avoids sanctions regarding costs.

 

A

[about time]

Thanks Andy and Alloyz. I would be keen to get it back to SCT too so am I right in thinking I indicate that in section ad question 2?

 

I can see the merits of entering into mediation if the claimant can prove they have a valid claim but as I strongly believe they do not have a valid agreement, or proof of ownership and so dispute the claim I am confused. By trying to settle I take that to mean negotiating a sum or payment plan but is that not then totally undermining the basis of my defence? If they don't have a valid claim then they are entitled to nothing and so why would I negotiate?

 

My panicked research last night and your feedback has led me to thinking I would complete the questionnaire as follows, I know it's cheeky but continuing the research while at work is so difficult and I know I need to get this out today so your opinions would be hugely appreciated although I appreciate I'm not the only one with other things to do ......

 

Section A to say that I am not prepared to attempt to settle at this stage as I still do not believe there is an amount owed under the account number stated in the PoC and until my CPR request is satisfied I am unable to enter into any fair discussion with the claimant.

 

B N/A

 

I would state in section C that I have followed all pre-action protocols.

 

For section D

1. No applications made

2. Propose to move to SCT as already discussed

 

E no experts

F no witnesses

G trial to last less than one day and 2hrs (is this reasonable?)

H N/A

I No intention for applications in the future (or should I state that if the CPR request continues to be ignored I will apply for sanctions, and if so how would I word this?)

 

J This is the bit that really stumps me but I was going to attach proposed directions as follows:

 

I propose that:

 

1) the claimant be obliged to provide all documents requested in the defendants CPR request and subsequent defence within 14 days.

2) the claim be allocated to the Small Claims Track as it appears the sum claimed includes fees and costs which if deducted would bring the amount below the £10,000 threshold.

3) mediation and/or other settlement negotiations be delayed until such time as number 1 has been complied with.

 

Does the above seem reasonable or am I making any glaring mistakes/omissions?

 

Thanks as always,

 

AT

[Andyorch]

Thanks Andy and Alloyz. I would be keen to get it back to SCT too so am I right in thinking I indicate that in section ad question 2?

 

I can see the merits of entering into mediation if the claimant can prove they have a valid claim but as I strongly believe they do not have a valid agreement, or proof of ownership and so dispute the claim I am confused. By trying to settle I take that to mean negotiating a sum or payment plan but is that not then totally undermining the basis of my defence? If they don't have a valid claim then they are entitled to nothing and so why would I negotiate?

 

My panicked research last night and your feedback has led me to thinking I would complete the questionnaire as follows, I know it's cheeky but continuing the research while at work is so difficult and I know I need to get this out today so your opinions would be hugely appreciated although I appreciate I'm not the only one with other things to do ......

 

Section A to say that I am not prepared to attempt to settle at this stage as I still do not believe there is an amount owed under the account number stated in the PoC and until my CPR request is satisfied I am unable to enter into any fair discussion with the claimant.Mediation is not always about settlement but narrowing the differences within a claim...you can participate in mediation refuse it and still proceed to trial....refusing to participate is a no no with the courts.

B N/A

 

I would state in section C that I have followed all pre-action protocols.There are no pre action protocols in the defendants stance

 

For section D

1. No applications made

2. Propose to move to SCT as already discussed. Definitely and to throw a little legal in... pursuant to CPR 26.8 PD 2© It is not a complex case and can be dispensed with in SCT.

 

E no experts

F no witnesses

G trial to last less than one day and 2hrs (is this reasonable?) Yes

H N/A

I No intention for applications in the future (or should I state that if the CPR request continues to be ignored I will apply for sanctions, and if so how would I word this?) No ...just state no they have to disclose at Standard disclosure anyway and I will provide you with proper directions to issue the court to force this.

 

J This is the bit that really stumps me but I was going to attach proposed directions as follows: See above

 

I propose that:

 

1) the claimant be obliged to provide all documents requested in the defendants CPR request and subsequent defence within 14 days.

2) the claim be allocated to the Small Claims Track as it appears the sum claimed includes fees and costs which if deducted would bring the amount below the £10,000 threshold.

3) mediation and/or other settlement negotiations be delayed until such time as number 1 has been complied with.

 

Does the above seem reasonable or am I making any glaring mistakes/omissions?

 

Thanks as always,

 

AT

 

 

Regards

 

Andy

[Alloyz1]

Firstly Mediation is Without Prejudice and cannot be referred to in any court action except to state it was unsuccessful but entered into, although there is an element of disclosure that alerts them to the bones of your defence/ WS.

 

Secondly, I appreciate you have a defence and with the likes of Andy helping you it will be as good as it can be. However that defence does not account for the disposition of the judge, your financial status, costs implications and many other variables.

 

Mediation is a way, regardless of parties positions, to put the control into your hands as opposed to a judge and bring about a settlement. It is very useful to enter into if you want closure, mitigate possible risks of losing, CCJ, avoid high cost allocation if not small claims.

 

I can empathise with your point of 'why would i mediate if they cannot substantiate their position' however these DCA's have an uncanny knack of getting their ducks in a row just prior to the hearing and your whole position is undermined at the last possible moment, which may be accepted by the judge and put you an uneven ground.

 

I am not saying it is right for you, only you can decide that, I am only trying to help you understand its merits adn the approach you need to take for it to work. Couple that with obligations under Practice Direction- Pre Action Conduct and the CPR which have recently being part of recent precedence (PGF ii SA – v – OMFS Company Limited [2013] EWCA CIV 1288 2nd October Court of Appeal.) and it just may be a consideration for you.

 

Ok mediation promotion over

 

A

[Ganymede]

Thanks Andy and Alloyz. I would be keen to get it back to SCT too so am I right in thinking I indicate that in section ad question 2?

 

I can see the merits of entering into mediation if the claimant can prove they have a valid claim but as I strongly believe they do not have a valid agreement, or proof of ownership and so dispute the claim I am confused. By trying to settle I take that to mean negotiating a sum or payment plan but is that not then totally undermining the basis of my defence? If they don't have a valid claim then they are entitled to nothing and so why would I negotiate?

 

My panicked research last night and your feedback has led me to thinking I would complete the questionnaire as follows, I know it's cheeky but continuing the research while at work is so difficult and I know I need to get this out today so your opinions would be hugely appreciated although I appreciate I'm not the only one with other things to do ......

 

Section A to say that I am not prepared to attempt to settle at this stage as I still do not believe there is an amount owed under the account number stated in the PoC and until my CPR request is satisfied I am unable to enter into any fair discussion with the claimant.

 

B N/A

 

I would state in section C that I have followed all pre-action protocols.

 

For section D

1. No applications made

2. Propose to move to SCT as already discussed

 

E no experts

F no witnesses

G trial to last less than one day and 2hrs (is this reasonable?)

H N/A

I No intention for applications in the future (or should I state that if the CPR request continues to be ignored I will apply for sanctions, and if so how would I word this?)

 

J This is the bit that really stumps me but I was going to attach proposed directions as follows:

 

I propose that:

 

1) the claimant be obliged to provide all documents requested in the defendants CPR request and subsequent defence within 14 days.

2) the claim be allocated to the Small Claims Track as it appears the sum claimed includes fees and costs which if deducted would bring the amount below the £10,000 threshold.

3) mediation and/or other settlement negotiations be delayed until such time as number 1 has been complied with.

 

Does the above seem reasonable or am I making any glaring mistakes/omissions?

 

Thanks as always,

 

AT

You do have a witness to rely on.

 

You!

[about time]

Thank you all for your input. I will get the form completed and send it over once I have your directions Andy, much appreciated. Also thanks to you and Alloyz for the clarification re mediation, that part of the process makes a lot more sense and so I will agree to it. And Ganymede I see your point! I'll add me to the list, Ta!!

[Andyorch]

In the County Court Bulk Centre Claim Number XXXXXXXXXX

 

 

MKDP Claimant

and

About Time Defendant

 

 

###### DRAFT DIRECTIONS######

 

 

1.The Claim be allocated small claims track pursuant to CPR 26.8 PD 2© It is not a complex case which is based on a simple contract and can be dispensed with in SCT. The alleged debt is below the threshold for Fast Track less the claimants costs for issuing this claim.

 

2.Each party must by 4.00pm on the xxth xxxxx 2014/15 serve to the other party standard disclosure of the original documents on which this claim relies.

In particular original copies of the agreement & terms and conditions ...(add here what other documents you require)

 

3.Each party must by 4.00pm on the xxth xxxxx 2014/15 serve on every other party signed statements of all witnesses of fact on whom they intend to rely

 

4.Costs in the case

[about time]

Andy, I don't know what to say, thank you seems a little insufficient given the continual help you are giving but I genuinely appreciate it so much. I'll sleep better tonight knowing I've submitted this

[Andyorch]

Make sure you send the claimant a copy also ..... Directions should be agreed between parties.

[about time]

Hello all,

 

Hope all is well.

 

Just had an N24 from my local county court my scanner is broken so I'll type it out below:

 

IT IS ORDERED THAT

1. District Judge XXXXX orders that this claim is stayed until 4pm on XXth November 2014 to enable all parties to attempt settlement.

 

On or before 4.00pm XXth November one of the following steps must be taken:

Either

The Claimant must notify the court that the whole of the claim has been settled; (see note (i) below)

Or

The Claimant or Defendant must write to the court requesting an extension of the stay period, explaining the steps being taken towards settlement and identifying any mediatior, expert, or other person helping with the process.

The letter should confirm the agreement of all the other parties; (see note (ii) below)

Or

All the parties must file a completed allocation questionnaire at the court. Where a settlement of some of the issues in dispute has been reached, a list of those issues should be attached to the completed questionnaire. The list must be agreed with the other parties and must indicate that it has been agreed.

Note (i): Where settlement of the claim is achieved before the end of the period of stay, the following will be taken to include an application for the stay to be lifted:

(a) an application for a consent order to give effect to the settlement

(b) an application for approval of a settlement where one or more of the parties is a person under a disability: and

© the filing of a notice of acceptance of monies paid into court, or an application to accept monies paid into court out of time.

Note (ii) Extensions to the period of stay will generally be no more than 1 month.

 

Because this order has been made without a hearing, the parties have the right to apply to have the order set aside, varied or stayed. A party making such an application must send or deliver the application to the court (together with any appropriate fee) to arrive within 7 days of service of this order.

 

Dated 2 October 2014 at the end but the header of the document says 11th Oct.

 

First question is what do they class as date of service, would it be 11th Oct + 2? If it's based on the 2nd Oct it seems I've been cheated out of 2 weeks as it only arrived today!!

 

Secondly, do I take this to mean the DJ has decided against allocating this to the small claims track? I was really hoping they would so that I could use the small claims mediation service as I just don't have the money to pay for mediation otherwise. Can I contact MKDP by way of a without prejudice letter suggesting that I am prepared to enter into verbal discussions with them with regard to settlement as soon as they provide me with the documents requested in order to evidence the validity of their claim or must I involve a paid mediator?

 

Also, there's no mention of forcing MKDP to provide the documents requested so if I can't do the above I'm a bit stumped as to how I can show I've made attempts to settle (and so feel safe to proceed to court in the hope that they eventually get put to proof) without starting to discuss settlement for a claim I don't believe to be valid.

 

thank you

 

AT

[Andyorch]

Its not been allocated yet AT..the court is allowing time for you both to try to reach settlement....failure to agree you simply submit a further DQ by "On or before 4.00pm XXth November" again request SCT.

 

Andy

[about time]

Ok, thanks Andy, that makes sense.

 

Thanks to my laptop dying I've been unable to do anything for a couple of days

but I've just been searching for info on mediation

and as it seems that it's a flat fee of £300+VAT

I am stumped as I would have to borrow it from family.

Do I have to pay someone or can I do it myself?

 

Is it likely to be seen as a reasonable effort to enter into mediation

if I write to MKDP with the following before resorting to borrowing?:

 

Dear sirs,

Claim ref: XXXXXXXXX

 

in accordance with the Civil Procedure Rules I am willing to enter into mediation with regard to the above claim

immediately upon receipt of evidence that this claim is valid.

 

 

To date you have failed to supply me with a copy of a valid credit agreement under the account number quoted in your particulars of claim,

or confirmation of legal assignment from an original creditor to your company.

 

 

As I do not believe there is an amount owing under this account number and, furthermore,

have not seen any evidence that I owe any money to MKDP,

I do not feel that I should be discussing any form of settlement for monies that I do not believe I owe.

 

Yours sincerely,

 

AT

[about time]

Sorry, just gone back over earlier post, and can see that this letter would be a no no.

 

I probably won't be able to borrow money to pay for mediation until the start of Nov and the court deadline is the 3rd.

 

 

It says I need agreement from all parties if I want an extension

 

 

do I just write to MKDP and ask for their agreement, stating that if I don't hear with say 7 days I will assume they are in agreement.

 

If I am successful in defending the claim can I seek to recover mediation costs?

 

Thanks as always.

 

I wish I could have used the small claims mediation service for this one

[dx100uk]

is your laptop working now?

 

 

dx

[about time]

No, needs a new charger, have been trying to avoid using work computers for this stuff as don't want them knowing but don't really have a choice now. Hopefully they've got better things to do than monitor me!!

[Andyorch]

Looking at the order again AT it would appear the lack of offer of mediation would imply its heading for Fast Track.You can conduct your own mediation...dont go into debt to try to comply....the only difference will be that you are dealing direct with the claimants council.....should they wish to mediate.

 

Did they opt for mediation on their DQ?

 

Regards

 

Andy

[about time]

Yes, they opted to try and settle. That's a relief I can conduct it myself (thanks!), I will call them in the morning.

 

I had a read of Alloyz sticky on mediation and so am thinking I'll explain that I would like to settle this matter out of court and then refer directly to the particulars of claim. In doing so should I just say the following "that I dispute that any money is owed under the account number quoted, or under any other account number with Barclaycard and that I dispute that any notice was served of any assignment. We're it to be proven that money was owed under this account number, and that said debt was now legally owned by MKDP then I would, of course, discuss settling any outstanding amount without the need for court proceedings"?

 

Should I ask for agreement from them that they will confirm a mediation discussion has taken place before proceeding so that, in the event that we fail to reach a settlement, I can prove to the court that I tried?

 

Last question is probably obvious but should I just call the contact number on their DQ next to the signature and ask for their counsel?

 

Ever grateful,

 

AT

[Andyorch]

Take a read of the following this is Alloyz own thread which I advised him how to mediate directly and negotiate a successful Tomlin Order

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?425061-MKDP-Claim-Form-old-Barclaycard-debt-***Settlement-agreed-claim-stayed***&highlight=Alloyz

 

Dont worry about the court for now you do not have to prove you attempted mediation.

[about time]

Great, will read it now, thanks Andy

[about time]

So I read through the above thread, thanks for flagging it up as it gives me a better idea of what to expect in mediation.

 

 

However, I had been working on the basis that I was aiming for a similar outcome to my previous one,

where the case was discontinued due to lack of valid docs.

Is this less likely this time?

 

 

I was reading through a number of other threads as well last night and think I have confused myself further!! (Easily done in my case)

 

I thought that a lack of a valid credit agreement and key document s such as NoA etc was sufficient to make it unenforceable.

However, from reading several Threads, including the lengthy one about HSBC and lots of comments stating that by trying to get them to prove their claim

the burden of proof shifts to the defendant but putting them to strict proof does not.

 

 

What are the main differences with these points as I'm struggling to get my head around it?

 

So that I am absolutely clear my aim is to get the DJ to put them to strict proof,

which they cannot fulfil and therefore I can get the claim struck out?

 

 

Whereas, if it gets as far as court there is a chance the DJ could find in their favour even without all the documents? Is that right?

 

Sorry to be repetitive but to get the claimant's approval for an extension to the stay

do I just ring them and ask and then if they say yes quote that conversation in my letter to the court?

[Andyorch]

The above was with regards to negotiating a Tomlin Order ...different to mediation.

 

MKDP rarely discontinue..thats MR Carters usual course.

 

Its a case of.. what.. if.. buts...all claims are different all Judges are too...there is no set pattern.

 

Andy

[Alloyz1]

However, I had been working on the basis that I was aiming for a similar outcome to my previous one,

where the case was discontinued due to lack of valid docs.

 

Morning AT

 

Appreciate you have your targets and outcome aims, which is good, however hoping the claimant discontinues is not something in your control and if the claimant does not discontinue, the decisions are in the judges hands.

 

Mediation is a good way to narrow the gap between the parties and manage negotiations closure to your aims, than the uncertain judges decision.

 

Andy can give you the very best ammunition to get the best possible result in court and his work may force a discontinuance, but keep an open mind on mediation and the risk/ reward on betting they discontinue. You can maintain control and settlement management through mediation which is not so flexible through a court case.

 

A

[Andyorch]

http://www.consumeractiongroup.co.uk/forum/showthread.php?435236-MKDP-Didn-t-Turn-Up(3-Viewing)-nbsp

 

[Alloyz1]

I choose my words carefully sir!